JOHN SEMAKULA————————————APPELLANT
VERSUS
POPE PAUL VI SOCIAL CLUB LIMITED—————————-RESPONDENT
(COURT OF APPEAL CIVIL APPEAL No. 67/04)
Case summary
Brief facts
The appellant had filed HCCS No. 1010/2001 against the respondent, for recovery of land comprised in Kibuga Block 16 plot 14, situated at Rubaga, Kampala District. The appellant claimed that the transfer of the suit land into the names of the respondent on 26th May 1983 was tainted with fraud. The appellant stated that at the time of the transfer to the respondent, the registered owner, a one Erisa Semakula Makona Magoba was already dead, having passed on 10th January 1979.
The respondent filed a Written Statement of Defense, in which it denied the allegations of fraud, claiming that it was a bona fide purchaser for value without notice and that it purchased the suit land from a person who purported to be called Erisa Semakula Makona Magoba, for a consideration. During scheduling conference, the respondent raised the preliminary objection to the effect that the suit was time-barred, having been filed more than12 years after the discovery of the alleged fraud. The learned trial judge upheld the objection and dismissed the suit with no order as to costs.
On 8th July2003, the appellant refiled HCCS No 420/03 in which it again alleged fraudulent transfer of the suit land, and pleading disability of age as a cause for having failed to file the case within the time prescribed by law. Counsel Omongole of Omongole & Co. Advocates represented the appellant. During the trial, counsel for the respondent raised a preliminary objection that the matter was res judicata and court upheld the preliminary objection with costs, and hence an appeal to the Court of Appeal.
Court of Appeal, citing order 7 rule 13 of the Civil Procedure Rules held that:
“The provision of the law is very clear. The appellant’s plaint was rejected for being barred by the Limitation Act. The provision of this rule allowed him to present a fresh plaint, which he did and pleaded disability. This means as I understand it that the rule of res judicata is inapplicable to a plaint which is rejected for being barred by any law. The appellant was within his right to present a fresh plaint in my humble view. The cause of action and the reliefs he is seeking remained the same”
Court discussed exhaustively the principle of Res Judicata in this matter and agreed with counsel Omongole for the appellant that the matter was not affected by Re judicata.
With these findings, the Court of Appeal allowed the appeal with costs to the appellant both in the court of appeal and the court below (High Court) and ordered a remittal of the matter to be tried by the High Court. The matter was tried afresh, with Counsel Omongole Richard representing the plaintiff both at the High Court and Court of Appeal and won again.
This case is one of the leading cases on what constitutes Res Judicata and fraud on land transfers.